Certain Members of the Panel of Experts (six out of 10) have presented a confidential, for discussion purposes only, document, for the consideration of and discussion by the Steering Committee of the Constitutional Assembly, a document which seeks to facilitate the formulation of a Draft Constitution Bill by the Steering Committee.
The Panel of Experts consists of persons nominated and appointed by the political parties represented in the Parliament.
In critically analyzing it, one finds that the application of any approach taken under the various rules of statutory construction or interpretation would not absolve the travesty that is the attempt at Constitutional reforms made by the Six Members of the so called Panel of Experts, who are political appointments, as exemplified in their simple minded and misguided stab at amending the Constitution to suit certain aspirations. Nowhere is this legally unsound, utterly unpragmatic and blatantly obnoxious in terms of the reckless (or perhaps even willful) disregard of national realities more evident than in the case of their attempted undoing of the pivotal provisions of Articles 1 to 5 found in Chapter I of the Constitution which deals with nothing short of the ‘The People, The State and Sovereignty’. It seems that the monkeys have got the razorblades and therefore if by some stroke of woe, lunacy prevails, and the wordings put forward by the Six Members of the said Panel in their reformulations (proposed as Articles 1 to 4 in their document) which are consistent with that of a delusional pipe dream, are adopted, it would precipitate the eventual undoing of this nation. In short it constitutes not Constitutional reforms with qualitative improvements or value additions but a Constitutional perversion.
Chapter I of the Constitution in Articles 1 and 2 deals with the nature of the State while Articles 3 and 4 concern the social contract and the vesting of sovereignty in the various administrative arms of the State, specifically the legislature/the Parliament, the Executive (the President) and the judiciary, and Article 5 defines the territory of the country.
The State and its Nature
The nature of the State is, in the present Constitution, held to be one that is a Free, Sovereign, Independent and Democratic Socialist Republic that is also Unitary.
On the other hand, the particular Experts Panel formulation retains the references to a Free, Sovereign and Independent Republic, omits the mention of ‘Democratic Socialist’, and explains that the State “is an aekiya rajyaya/orumiththa nadu (defined in the formulation as being “undivided and indivisible”), consisting of the institutions of the Centre and of the Provinces which shall exercise power as laid down in the Constitution”. The new formulation retains that the power to amend or repeal or replace the Constitution is with the legislature and the people as per the manner provided in the Constitution.
Firstly, the references to democracy and socialism are vital are they relate to aspects pertaining to the civil, political, economic, social and cultural life of the people in the country, not to mention the cherished value systems (including the existence of aspects pertaining to a welfare State) under which life is lived. It serves as a constant reminder on how we should treat each other, including the rules and regulations governing the relations between the Government and the body politic. Thus any omission is unthinkable, not to mention unnecessary.
Also, the references to “the institutions of the Centre and of the Provinces” in the new formulation in reality concern aspects pertaining to the administrative apparatuses of the State, and should therefore not be construed as constituting the nature of the State and thereby conflated with such. It is a formulation that should appropriately be brought within the domain of the Article that deals with the ‘territory’ and not one that deals with the ‘nature of the State’.
Furthermore, the case of ‘unitary’ being changed to ‘undivided and indivisible’ is a wholly unwarranted aberration, which also beggars the question as to whether the aforementioned Six have an ulterior agenda albeit even insidiously sinister motive beyond their perceived clever adjective riddled phraseology or word play. Despite the caveat against separatism or secession in Article 4 as proposed in the new formulation, it is no small wonder that the grim spectre of a federalism bordering on separatism as pointed out by other critics, looms, writ large in this particular word manifestation. The aforementioned caveat in this precarious context is tantamount to a case of volunteering innocence when the question of guilt was not raised.
Something is certainly rotten in the State as proposed in Article 1 of the new formulation which reeks of a form of political-geographical-topographical neoliberalism.
Sovereignty as articulated in Article 3 of the present Constitution and Article 2 of the new formulation, are both the same in that it is vested in the people and is inalienable, and that it includes the powers of the Government, fundamental rights and the franchise.
The exercise of the sovereignty is expanded upon in Article 4 of the existing Constitution where the legislative power is exercised by representatives elected to the Parliament by the people, the Executive power which includes defending the country is exercised by a President elected by the people, and the people’s judicial power is exercised via the Parliament through lawfully established judicial mechanisms and systems. In the same Article, it is specified that the fundamental rights are to be respected, secured and advanced by all organs of the Government and that they cannot be abridged, restricted or denied except by way of a Constitutionally provided manner. The franchise for those above 18 who are qualified to be electors and whose names are in the voter registry is provided for in the same Article.
However, the new formulation’s Article 3 deals solely with the exercise of the powers of the Government under which the legislative, Executive and judicial powers of the people are to be exercised as stated in the Constitution which the architects of the new formulation claim is the “Supreme Law” of the land. The question is whether this establishes Constitutional supremacy. It does not. In order for Constitutional supremacy to prevail over Parliamentary supremacy, the power of post-enactment judicial review of laws must be afforded to the foremost interpreter of the text that is the Constitution, the Supreme Court. In the absence of such, all that remains is Governmental supremacy as has been proposed as opposed to Parliamentary supremacy, which is even worse. The references to the fundamental rights and the universal suffrage have also been excised from the new formulation. Need more be said.
On the subject of administration, Article 5 of the existing Constitution holds that aside to the territorial waters, the country’s territory consists of 25 administrative Districts and that the Parliament by way of a “resolution” may if it so determines, subdivide or amalgamate the said “administrative Districts” “to constitute different administrative Districts”.
Note that the basic unit of territorial demarcation is the District and not the Province. One salient reason for the fact is that the third tier of governance, the Local Government authorities (bodies which include the Municipal Councils, the Urban Councils and the Pradeshiya Sabhas) operate within the District and Divisional levels, being the closest to the body politic, in terms of providing vital services which tend to the practical aspects of day to day activities at the grassroots and ground level. There is also a question of the distribution of funding and resources from the Provincial Councils to where it really matters (the Local Government institutions) instead of having them be unutilized or misappropriated or mired in bureaucratic red tape and political wrangling as has been seen on many occasions in the past.
The other essential aspect is that Article 5 of the current Constitution holds that the Parliament prior to subdividing or amalgamating any administrative Districts, has to arrive at a determination in the form of a resolution to do so. Although by a Parliamentary resolution, the entire Parliament has been made a Constitutional Assembly in early 2015, the making of that determination concerning subdividing or amalgamating any administrative Districts, cannot be arrogated to the Steering Committee of the Constitutional Assembly, which is the central body of the Constitutional Assembly, let alone to an ad-hoc Panel of Experts. No such determination in the form of a resolution has been made by the incumbent Eighth Parliament.
Regarding the country’s territory, the new formulation of Article 4, is constituted of its geographical territory, including the Provinces, and elsewhere the territorial waters and airspace, and any additional territory acquired in the future. It is further added that while Sri Lanka will have all rights recognized by law, custom and usage in relation to its territory, “No Provincial Council or other authority may declare any part of the territory of Sri Lanka to be a separate State or advocate or take steps towards the secession of any Province or part thereof, from Sri Lanka.”
The latter caveat takes from the existing one albeit in a much abridged sense, where according to the Seventh Schedule of the current Constitution, under Article 157A(1) regarding the prohibition against the violation of the country’s territorial integrity and Article 161(d)(iv), the citizen taking the oath cannot, “directly or indirectly, in or outside Sri Lanka, support, espouse, promote, finance, encourage or advocate the establishment of a separate State within the (country’s) territory.”
The answers as reiterated previously by the author lies firstly in the devolution of power by way of the implementation of the 13th Amendment to the Constitution (although the circumstances under which the contentious Amendment became part of the supreme law of the land were hardly ideal) upon a re-evaluation and revaluation of the subjects coming strictly under the purview of the Central and Provincial lists and the abolition of the Concurrent list, and perhaps even considering empowering the Provincial Chief Minister to be on par with the powers afforded to the Provincial Governor (to provide for a Constitutional gridlock) and other structural and systemic reforms as required for the purpose of effectiveness and efficiency in the context of fulfilling the duties and responsibilities of the Councils. All of these above named elements combined would suffice to afford more than an adequate measure of autonomy to the Provinces (the second tier of governance) in terms of governance. At no point should this be construed as a carte blanche for self rule, as autonomy in governance has oft sought to be misrepresented by certain persons who rhetorically and otherwise demand for autonomy in governance. Moreover, any deviation from the normative nature of a unitary State, towards an “aekiya rajyaya/orumiththa nadu – undivided and indivisible” one, (the chicanery of autonyms masquerading as synonyms), would only serve to weaken the Centre/Central Government, which is the most essential component in guaranteeing the aforementioned devolution that is being much sought after, however to the satisfaction of the national aspirations of the citizenry and in the best interests of all peoples of the nation of Sri Lanka.
The existing Constitution is anything but perfect and among other required changes, the repeal of Article 16(1) which provides for the existence of discriminatory personal laws, the removal of the one month time bar imposed on filing suit before the Supreme Court in the case of fundamental rights applications, and the removal of immunity from suit afforded to the President in his private capacity, for starters, are but only a few aspects from among a vast majority of changes that require a Constitutional remedy. What is not required is the kind of malodorous ‘country be damned’ malady constructed by the dwellers of cloud cuckoo land who are attempting to, by way of tampering with Articles 1 to 5 of the existing Constitution, fix that which isn’t broken, thereby ‘fixing’ the country beyond repair.